ABBURI RANGAMMA Vs. CHITRAPU VENUPURNACHANDRA RAO

JUDGEMENT

(1.) This second appeal has come to us on a reference made by our learned brother, Chandrasekhara Sastry, J. The question which has to be necessarily answered in this enquiry is whether the plaintiff, who had earlier instituted a suit for mesne profits of an immovable property and had omitted to sue for recovery of possession, if institutes a second suit for recovery of possession, such a suit is barred by Order 2, Rule 2 C.P.C. The material facts in order to appreciate the merits of the contention in this regard may briefly be stated.

(2.) One Abburi Venkata Subbarayudu had two wives. By his first wife he had one son, Raghava Rao and one daughter, Damayanthamma Raghavarao was married, but did not have any issue. He subsequently died leaving his widow, The plaintiff is the son of Damayanthamma, the daughter. The 1st defendant who is the appellant before us is the second wife.

(3.) The plaintiff basing his claim on a will dated 29-8-1932 executed by Abburi Venkata Subbarayudu under which three godowns situated in Tenali were given to the daughter-in-law Venkata Ramamma for her life and vested remainder to the plaintiff filed a suit for mesne profits against the 1st defendant and the tenants (O. S. No. 36/47 on the file of the District Munsifs Court, Tenali.) The suit was resisted by the 1st defendant but was subsequently decreed. It was alleged that subsequent to the execution of this will under which various properties were disposed of, Venkata Subbarayudu executed some settlement deeds in September, 1942, under which the second wife as well as the daughter-in-law got some properties with immediate effect. The daughter-in-law thus surrendered her life interest in the suit property and accelerated the vesting of the property in the plaintiff Abburi Venkata Subbarayudu died on 29-6-1943